Powers v. State , 44 Ga. 209 ( 1871 )

McCay, Judge.

1. Nothing can be plainer than that the crime of incestuous fornication is, by our statute, not a joint offense. The words are, “any person, who shall commit incestuous fornication.” By what rule of construction this can be made to mean, “ if any two persons shall,” etc., we are unable to see. The very next section of the Code, section 4460, punishing fornication and adultery, does make a joint offense, and uses very different language. “ Any man and woman who shall,” etc. It is hardly supposable that language so different should be used in almost the same sentence without a special intent. And there is great propriety in the distinction. The unnatural crime, prohibited in section 4459, as experience shows, is generally the act of a man upon a woman, over whom, by the natural ties of kindred, he has almost complete control, and generally he alone is to blame. There is a force used, which, while it cannot be said to be that violence which constitutes rape, is yet of a character that is almost as overpowering. Indeed, if it were necessary to make out a case of mutual consent, (and without this there is no joint offense,) we think but few cases of this unusual crime would be punished.

2. The only statement of the witness that made the proof of the pendency of the suit, in the name of the witness, by her brother-in-law, as her next friend, evidence at all, was that no such suit had been brought; that there was a suit in her own name, and not brought during her infancy. The proof of the pendency of the suit contradicted her statement, and the contents of the paper would have added nothing to the evidence contradieting the witness.

Nor was it a matter of much moment any way. She was, in fact, the plaintiff, and it would be a very harsh construction to hold her to have sworn falsely, because she did not know that her brother-in-law’s name was used as her next friend.

3. The request to charge is not specially objectionable, save that it proposes to do a good deal more than is necessary to get the law to the jury. The illustrations it gives are, doubtless, true, and its distinction between civil and criminal cases is not illegal. But the charge of the Judge, as given, covers all the points made in the request, and is a fair and just explanation of the law to the jury. A refusal by the Judge to give in charge to the jury a pertinent legal written request is, by section 3664 of the Code, a ground for a new trial. But it is not error per se; as though he had expressed an opinion as to what was proven. A new trial may be granted for the error. It stands., therefore, like other errors. If they be material a new trial will be granted. But if they be immaterial this Court will not play at justice by making them material, and granting new trials for their correction. As we think no harm was done, and the prisoner lost nothing but the language of his counsel, we will not, for this reason, hold that the Judge ought to have granted a new trial.

4. The law does not and cannot lay down any rule to measure the extent of the corroboration necessary to support the testimony of an accomplice in a felony. The statute says, section 3702, in effect, that there must be another witness or corroborating circumstances. In this case there were many corroborating circumstances. The girl had a child, the parties were living alone in a house with but one room ; they had been seen under circumstances indicating an intention on his part to commit this crime, if he could, and the Judge was very favorable to the prisoner — more so, we think, than strict justice required, when he told the jury that the additional witness, or circumstances of corroboration, must be such as to satisfy them beyond a reasonable doubt that the prisoner was guilty.

5. The evidence was pretty strong, going to discredit both of the witnesses, and we incline to think the preponderance was against them. But the credibility of witnesses is specially matter for the jury, and we are all aware how female witnesses are disposed to visit their direct condemnation upon a sister’s fall. We do not feel it to be within our province to interfere in a case turning so completely upon the credit to be given to the witnesses as this. The mode of testifying— the tone — the look — the emphasis, given to words and that judgment of a witness which can only be formed upon what occurs, that cannot be reduced to writing, were all before the jury, and are not and cannot be before this Court.

Judgment affirmed.